The Regulatory Shifting Baseline Syndrome: Vaccines, Generational Amnesia, and the Shifting Perception of Risk in Public Law Regimes
Robin Kundis Craig
Vaccination mandates have been controversial since governments first imposed them. Nevertheless, the intense politicization surrounding the COVID- 19 pandemic obscures a more pervasive problem for U.S. public health laws and vaccine-preventable diseases. Until the late twentieth century, the risk of various dread diseases was sufficiently high for most people that they embraced new vaccines. The intentional result of federal and state vaccination policies was that fewer people got these diseases. The perverse result was that perceptions of disease risk shifted, making the vaccines themselves seem like the far riskier option to many people, generating pressure to eliminate or mitigate vaccination mandates. Perhaps most importantly, in the early twenty-first century, state legislatures enacted exemptions from school vaccination requirements, setting the stage for measles resurgences in 2015 and 2019.
Focusing primarily on measles vaccination, this Article argues that, while not the only factor, a regulatory shifting baseline syndrome fueled the pre- COVID-19 resistance to vaccination. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation forgets what the ocean and its fisheries used to contain, leading successive generations to accept the current impoverished state of marine fisheries as normal. This generational amnesia makes opaque what the goals of fisheries regulation should, or even could, be.
This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society. This syndrome arises when a public legal regime, like a school vaccination mandate, so successfully eliminates a societal problem, like dread diseases, that citizens, politicians, and lawmakers forget that the regime is, in fact, still working to keep that problem at bay. This generational amnesia can lead to changes in law and policy that allow the prior problem to re-emerge in society, as occurred with measles outbreaks. While COVID-19 vaccination mandates are almost uniquely politicized and too new to reflect this syndrome, decisions in the COVID-19 context may nevertheless give the regulatory shifting baseline syndrome more room to operate, potentially threatening public health gains made with respect to other vaccine-preventable diseases in the United States.
Advancing Harm Reduction Services in the United States: The Untapped Role of the Americans with Disabilities Act
Abigail Fletes, Maria Katherine Delos Reyes, John C Messinger, Valarie Blake & Leo Beletsky
Now in its third decade, the overdose crisis continues to worsen. Harm reduction strategies, such as syringe service programs (SSPs), are proven, cost- effective responses to this ongoing public health emergency. Despite extensive research demonstrating that the health and social benefits of harm reduction services far outweigh alleged negative externalities, the number and scope of these programs continue to be severely limited. Restrictive zoning and other discriminatory legal measures figure among key barriers to harm reduction service access. The Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) have recently gained prominence in challenging discrimination against people who seek substance use treatment. But the instrumental potential of these landmark statutes to advance access to harm reduction services has been largely unrealized. By drawing lessons from the emerging success in using Title II of the ADA and Section 504 of the RA in the realm of substance use treatment, we call for urgent deployment of these statutes to expand access to harm reduction services in the United States. In the context of a spiraling crisis, these legal tools offer enormous promise in safeguarding the rights—and lives—of vulnerable people.